This post is about whether Brexit requires legislative consent from the devolved legislatures, particularly the Scottish Parliament, and what that consent relates to – whether the whole process of Brexit, or only aspects of it. It argues that the English and Welsh High Court’s judgment in the Miller case ([2016] EWHC 2768 (Admin)) on the use of prerogative powers alters the position significantly, and that the implication of that judgment is that the consent of at least the Scottish Parliament is needed for the triggering of Article 50. Whether that will be the case depends, of course, on what the UK Supreme Court has to say when it comes to give its ruling on the issue early next year.

Legislation which affects devolved functions requires consent – by convention for Northern Ireland and Wales (until the current Wales bill comes into effect), and by statute for Scotland. (One might call this the ‘policy arm’ of the convention.)

Changes which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers also require legislative consent, by convention. That applies whether the change removes functions from the devolved legislature or executive, or confers new functions on either of them. (This can be called the ‘constitutional arm’ of the convention.).

As a convention, it is not justiciable before the courts – but the statutory arm of it is. Otherwise, the UK Parliament remains sovereign, something explicitly stated in all the principal devolution Acts.

(So far as Scotland is concerned, the key text is Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland, available here. Although that is an internal document of the UK Government and has not been revised since 2005, it was in fact agreed between the two governments.)

Working out whether the convention applies in its policy arm is easy enough conceptually, but rather harder in practice. The test is whether the Westminster legislation would be within the competence of the devolved legislature if it were tabled for consideration there. If the legislation could be passed by the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly, it requires their legislative consent. (As it can be hard identifying the boundaries of competence of the National Assembly for Wales, it can be particularly difficult applying that test there.) Ultimately, as this arm of Sewel is now statutory for Scotland, this is a matter for the courts.

We do not, of course, know what form the UK legislation to enact Brexit will take. Depending on the Supreme Court’s view, it may involve Parliamentary approval for the triggering of Article 50, which if needed is likely to be an Act rather than a resolution (to put the question beyond doubt). Theresa May has said that subsequently there will be a ‘Great Repeal Bill’ to transpose existing EU obligations into domestic law and replace the European Communities Act 1972. There may need to be further post-Brexit legislation as well.

Arguments about whether legislative consent is needed for Brexit therefore appear to rest on the constitutional arm. Here, there seem to be two arguments. First, that Brexit affects devolved functions which are subject to heavy EU influence – which includes most devolved functions, but with agriculture, fisheries and the environment at the top of the list. They are not reserved, but the devolved government and parliament are subject to the general requirements to comply with EU law. The argument seems to be that these functions would be changed by Brexit, and consent to that is needed. That argument makes the assumption that there would be some sort of UK-wide policy for them once the UK leaves the EU. Indeed, at least some from the SNP has been keen to call for that not to be the case, and control of these areas to be left wholly to the Scottish Parliament. If the UK Government were to agree (and there are good policy reasons why it might – it will have enough to do with implementing Brexit on top of adding a UK framework for these policy areas), that argument falls away. By agreeing to allow these policy areas to be devolved, there is no change to devolved functions so no need for legislative consent. Ironically, demands to enhance the devolved legislatures’ powers in one respect undermine their claim to need to consent to UK-wide changes in another. If the UK Government were to make a clear official statement on this (and the Scottish Secretary has already suggested this), the matter would be resolved beyond doubt.

The second reason why devolved legislative consent might be needed is because it will involve changes to the text of the devolution legislation. (See, for example, Sionaidh Douglas-Scott here.) Devolution Guidance Note 10 on Post – Devolution Primary Legislation affecting Scotland makes it clear that

provisions which either do not apply to Scotland at all, or which do apply there but relate to reserved matters under the Scotland Act 1998,

or provisions which apply to Scotland and relate to reserved matters, but also make incidental or consequential changes to Scots law on non-reserved matters

do not need legislative consent. This does not provide that any change to the text of the Scotland Acts requires legislative consent – only when that legislation changes the legislative competence of the Parliament or the executive competence of the Scottish Ministers. It relates to substantive effect, not form, and not to incidental or consequential changes relating to reserved matters. And the significance of those changes depends on whether the UK Government seeks to legislate for a reserved matter – determined ‘by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances’ (section29(3)). Legislation to give effect to Brexit clearly relates to a reserved matter.

There is a secondary aspect to this. Douglas-Scott makes the argument that changing the Scotland Act 1998 to remove references to EU obligations would be needed. (The key ones are section 29(2)(d) and section 54(2)). Those references would be constitutionally and politically superfluous, but (at least arguably) binding if they remained in the text of the Act. If correct, that would require Scotland still to comply with EU obligations after the UK as a whole left the EU, so far as devolved (non-reserved) matters were concerned. That would be a highly complex and even perverse outcome. However, this view would seem to be legally mistaken. The Scotland Act 1998 (as amended) defines EU law as ‘(a) all those rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the EU Treaties, and (b) all those remedies and procedures from time to time provided for by or under the EU Treaties’ (section 126(9)). It does not define ‘EU Treaties’. The statutory definition of those is in section 1(2) European Communities Act 1972 (which is one of the ‘protected provisions’ that only Westminster and not Holyrood can change). If this is repealed through the Great Repeal Bill, references to EU law in the Scotland Act 1998 become meaningless; they would refer to nothing that has legal effects within the UK. Even if legislative consent were needed for that change, which is unlikely since it concerns a protected provision, the only legal effect of withholding it would be to leave irrelevant clutter in the Scotland Act, not the perverse outcome of the Scottish Parliament being bound to apply EU law when Westminster was not. Removing those obligations – which only Westminster can do – would simply tidy up the Scotland Act 1998, to Holyrood’s advantage.

On this basis, it would be hard to avoid concluding that devolved legislative consent for Brexit is not needed, at least so far as Scotland is concerned. (The technicalities of consent are different for Wales, but the same conclusion would appear to be the case there. The position for Northern Ireland is much more complicated because of the provisions of the Belfast Agreement and the way that affects the Northern Ireland Act 1998.) However, that was before the England and Wales High Court gave its ruling in the Miller case on the use of prerogative powers to invoke Article 50 of the Treaty on European Union for the UK’s departure. What is important here is not so much the Divisional Court’s ruling that this action required Parliamentary approval, but its reasoning. The key element of the court’s argument was that, as the Article 50 notice would be irrevocable, it would start a process of leaving the EU that could not be stopped, and the effect of that process would be to remove various rights arising from EU membership. Those are not simply the rights linked to EU citizenship, but appear to be considerably broader. The UK Parliament alone could agree to the removal of such rights, applying long-established principles and rules of British constitutional law.

There are reasons why lawyers disagree with the Divisional Court’s ruling (such as Professor Adam Tomkins MSP here), though most agree with it (see, for example, posts on the UK Constitutional Law Association’s blog here). In any event, the Supreme Court may not agree with the Divisional Court. But the reasoning about the connection between EU membership and individual rights changes the position regarding legislative consent for Scotland considerably. That applies even if the Supreme Court were to reach a similar conclusion by a different route, without over-ruling the Divisional Court on this issue. For Scotland at least, ‘rights’ including human rights are not a reserved matter. The Human Rights Act 1998, and the Convention rights it enacts, are provisions protected from alteration by the Scottish Parliament, but rights more widely are not. If Westminster were to interfere with such rights, that does affect a matter within the competence of the Scottish Parliament – which is the test for deciding whether legislative consent is needed under the policy arm of the Sewel convention. As it affects a devolved matter, it is statutory and that also means it is justiciable by the UK Supreme Court. Moreover, as this is a constitutional provision so far as the UK is concerned, the requirement needs to be satisfied for the Article 50 notice to be valid (since that must comply with the notice-giving member state’s ‘own constitutional requirements’).

The Supreme Court needs to address this question, as if it is left hanging it will only lead to further legal uncertainty (and litigation, and delay) in the process of Brexit, or yet more political grandstanding with little legal or constitutional foundation. Only if leaving the EU were not to affect ‘rights’ could the requirement for legislative consent be dispensed with. It is yet more evidence, if evidence were needed, that the path to the UK leaving the EU is a long, complex, twisting and messy one.

UPDATE: It is worth noting that this post was written before the UK Supreme Court ruled in the Miller case. While its 8-3 majority judgment upheld the need for the UK Parliament to give its consent to the issuing of an Article 50 notice (done by the European Union (Notification of Withdrawal) Act 2017), it approached the issue in a different way. In essence, rather than taking the novel ‘rights-based’ approach that the Divisional Court had, it looked at the question in a more traditional way rooted in the doctrine of the separation of powers.

This has significant impact for the need for devolved legislative consent. The question of rights brought (at least to my mind) the bill within the scope of the Sewel convention. The different approach taken by the Supreme Court means it did not. On that basis, not only was it right for the UK Parliament to proceed to pass the Article 50 bill without devolved legislative consent, but there was no constitutional foundation for the Scottish Parliament to debate a legislative consent memorandum on the bill (and withhold its consent).

The question of whether further bills related to Brexit might need legislative consent is, however, still an open one. We have not yet seen any of those bills, of course. The ‘great repeal bill’ to transpose EU law and obligations into domestic law would appear unlikely to in principle. Other bills may well have sufficient effect on devolved functions as to bring them within the scope of the convention.

The Supreme Court’s judgment provides the most detailed and authoritative legal discussion of the Sewel convention, and is well worth reading on that account. It dismisses the idea that putting the Sewel convention on a statutory footing makes it legally binding, and that it remains a political convention that cannot be enforced by the courts. I respectfully disagree with their view; why was it put into statute if not meant to be binding? I cannot think of any other case of a non-enforceable convention that is in statute. However, as the Supreme Court has taken the view that it is not legally enforceable, that now has to be understood as the law.

This was first published as an article in the Law Society’s Gazette earlier this week, and can be found on its website here.

Solicitors could be forgiven for being baffled about Welsh devolution, since it keeps changing. The latest episode started in October when the secretary of state for Wales published a new draft Wales Bill.

The draft bill proposed to put Welsh devolution on a ‘clear and lasting’ basis by delivering a ‘reserved powers’ approach to the national assembly’s law-making powers. The bill also proposed to devolve a limited range of further functions relating to matters such as planning for energy schemes or ports and harbours, and to give the assembly power to determine its own size, electoral arrangements and name. But the ‘reserved powers’ approach is at its heart. Seldom has what looks like a technical legal issue turned out to be more vexed or politically charged.

Pre-legislative scrutiny of the draft bill is coming to an end. The Welsh government and national assembly have considered it, and the Commons Welsh affairs committee is finalising its report. But the most detailed, non-partisan scrutiny comes from a major report by a group of lawyers, academics and former officials convened by the constitution unit at University College London and the Wales governance centre at Cardiff University. The report – Challenge And Opportunity: The Draft Wales Bill 2015 – sets out in detail why the draft bill needs to be fundamentally reworked if it is to live up to its promise.

‘Reserved powers’ means that the national assembly would be free to legislate for all matters save those expressly reserved to Westminster. At present, the assembly can only legislate 20 defined ‘subject areas’, including health, education and the environment. Using these powers, it has introduced ‘presumed consent’ for organ donation, looked hard at banning the smacking of children, re-established a body to set wages for farm workers, and is abolishing the distinction between residential leases and licences.

Its powers stretch a long way beyond regulating the public sector, but how far remains legally uncertain, thanks partly to a Supreme Court decision last February. The reserved powers approach is already used in Scotland and Northern Ireland (with modifications). Applying it in Wales would aid legal clarity and bring Wales more clearly into line with the other devolved parts of the UK (making it more straightforward for public lawyers). It would offer significant benefits, if done right. Done wrong, it would make matters worse, not better.

The bill has a number of flaws, but the initial one is simple. It starts by trying to graft the ‘reserved powers’ model on to the existing division of functions between Cardiff Bay and Westminster, without making any significant consequential changes. This has meant limiting the assembly’s powers, in some cases beyond what they are at present. As a result, the assembly could only legislate for matters affecting ‘private law’ – land law, contract and so on – when ‘necessary’ to do so, to give effect to legislation relating to ‘devolved functions’.

The increasing differences in law between England and Wales, which have to be reconciled within the shared legal jurisdiction of England and Wales, would be left to the courts to work out which body of law applies, case by case and ad hoc. All this is to preserve Westminster control of the legal system in general, and the shared legal jurisdiction of England and Wales in particular.

The results would be highly unattractive. The draft bill would result in a hamstrung, ineffective Assembly, which is in no one’s interests. When the assembly cannot act, Westminster would not be able to act either, so Wales would just end up badly governed. Critics may say that it will be a field day for lawyers, but not for many. Litigators might get some work, but others will be left with a complicated task of working out what the substantive rules are and which apply in what circumstances. Ordinary members of the public and small businesses will find it difficult to get legal certainty whenever matters of Welsh devolution arise.

Worse, a tightly constrained national assembly with a complex web of limits on its powers will struggle to make practical law that deals with problems in the real world. The tests the assembly has to pass will be adjudicated by the courts, so judges will have no option but to take an active and recurrent role in the management of Welsh devolution. Effectively, the Supreme Court (which does not have a ‘Welsh’ member) will become the second chamber of the national assembly.

The alternative to this is sketched out in our report. First, ‘necessity tests’ and constraints on devolved legislation affecting private and criminal law must go. Any such test – even a less demanding one, relating to the ‘appropriateness’ or ‘reasonableness’ of legislation – will make the courts key players in Welsh devolution, rather than elected politicians. The assembly needs to be able to use all the mechanisms the law offers to make its legislation effective, including those of reshaping private law and revising the criminal law. On the criminal side, some key offences might be reserved to ensure similarity of the criminal law, but even that creates problems. Reserving the law of homicide is one thing, but assault is another matter, if the assembly is to have the power to decide about banning smacking, for example.

Second, there needs to be a much clearer way to deal with conflicts of law issues – the fact that the law will be different between England and Wales. This could be done by a clear statutory ‘rules-based’ approach, setting down which set of laws applies in which circumstances. Alternatively, it could be done by establishing two distinct legal jurisdictions (of England and of Wales). ‘Distinct’ need not mean ‘separate’.

The same judges would sit, and lawyers practise, in both countries, but would do so in different capacities and would need to deal with different (though largely similar) bodies of law in doing so. Solicitors would be admitted ‘in England and in Wales’, rather than ‘in England and Wales’. Established rules for the conflict of laws would be used to determine what law applied in what circumstances, where there was a conflict. Again, that draws on experiences from Scotland and Northern Ireland.

What Wales – and the UK as a whole – needs is what the secretary of state says he wants: a robust, clear and lasting devolution settlement for Wales. The draft Wales bill is emphatically not it. If enacted in anything like its current form, it would be a horrendous, unworkable mess that would need to be replaced within a few years – perhaps the shortest-lived of the sequence of interim arrangements Wales has had since 1999.

None of that is good news for anyone, least of all legal practitioners. The way forward is going to involve more change, not less, and needs to be carefully thought through. But it offers the hope of a stable and lasting settlement which will benefit all the UK, not just Wales.

The timetable for the EU referendum is not clear, but there are two fixed dates running up to the process. The first is the deadline for publication by the UK Government of

a report which contains … information about rights, and obligations, that arise … as a result of the United Kingdom’s membership of the European Union, and … examples of countries that do not have membership of the European Union but do have other arrangements with the European Union (describing, in the case of each country given as an example, those arrangements).

The second is the formal referendum campaign period, during which the two designated In and Out campaigns will have referendum election broadcasts, rights to public funding, and be required to keep detailed accounts. All that is complicated and requires effort and engagement from those involved in campaigning (and can easily be got wrong). It also means engaging the public with issues about the UK’s future relationship with Europe rather than parties’ plans for taxation, housing policy or the health service. That period starts 10 weeks before referendum polling day.

The resulting table is long and complicated, and including it in the published report would have added hugely to the printing costs but not greatly to its argument or intellectual weight. Nonetheless, we thought it should be available to those interested. It runs to some 74 pages, and can be downloaded HERE as a PDF file.

Regarding use of the table, each numbered reservation in Schedule 7A has its own box. Not all comments do – some apply to several reservations on the same overall matter. There are some formatting gremlins that affect lay-out (for which apologies), but not clarity or legibility. The table includes all exceptions from reservations, but in some cases lengthy interpretation clauses have been edited.

Like this:

This blog post first appeared on the LSE’s British Politics and Policy blog, here. It also appears on the Constitution Unit’s blog, Constitution-unit.com, here, on the Edinburgh Centre for Constitutional Change’s blog, here and on ClickonWales, the blog of the Institute for Welsh Affairs, here.

I have forborne from commenting in any detail on the Draft Wales Bill before now, other than in giving evidence to the Commons Welsh Affairs Committee, because of my involvement in the joint Constitution Unit/Wales Governance Centre project. The report was published on Monday 1 February, and can be downloaded here as a PDF.

When the Draft Wales Bill was published in October 2015, it was described by Stephen Crabb, the Secretary of State for Wales as delivering on the UK Government’s commitment ‘to create a stronger, clearer and fairer devolution settlement for Wales’. This is badly needed; the history of Welsh devolution since 1998 has been one of short-term solutions that have needed to be revised or replaced within a few years. Hopes were high that the present round of constitutional debate – triggered by the appointment of the Commission on Devolution in Wales chaired by Sir Paul Silk in 2011 – would mark a departure from that established pattern.
Sadly, a close analysis of the Draft Bill shows those hopes to have foundered. A joint project hosted by the Constitution Unit at UCL and the Wales Governance Centre at Cardiff University has been looking at the Draft Bill in detail, and publishes its report Challenge and Opportunity: The Draft Wales Bill 2015 today. Our group has been chaired by Alan Cogbill, former Director of the Wales Office in Whitehall, and had Professor Rick Rawlings from UCL as rapporteur. Other members have included Sir Paul Silk and Sir Stephen Laws (formerly First Parliamentary Counsel), academic and practising lawyers from Cardiff, as well as myself. This work follows an earlier joint CU/WGC report published in September 2015, entitled Delivering A Reserved Powers Model of Devolution for Wales (available here as a PDF, and summarised HERE.) Our examination of the Draft Bill has found it to be flawed in many respects.
The first flaw is a conceptual one. The draft bill’s key commitment is to deliver a ‘reserved powers’ approach to Welsh devolution, like that used for Scotland (and with modifications for Northern Ireland). At the same time, it tries to avoid making wider changes to how Welsh devolution works while delivering that. The assumption that the ‘reserved powers’ approach can simply be grafted onto the existing division of law-making powers between Westminster and Cardiff Bay is wrong. The ‘reserved powers’ model necessitates a sequence of other changes, which were already in place for Scotland in 1998, and which need to be considered for Wales.Continue reading →

Like this:

With a number of colleagues from the Constitution Unit and the Wales Governance Centre, I have been working for some time on a major examination of the Draft Wales Bill published in October. This follows our earlier report written over the summer on issues of a ‘reserved powers’ model more generally. We’ve now finished our work and are shortly going to launch our new report, which is entitled Challenge and Opportunity: The Draft Wales Bill 2015. There will be two events – one in Cardiff at lunchtime on Monday 1 February, and one in Westminster late in the afternoon of Tuesday 2 February. Both events are free to attend but registration is necessary.

Having made its way through the Lords, the Enterprise bill will get its Commons second reading next Tuesday. In many ways, this bill exemplifies bad post-devolution legislation, as it’s a portmanteau bill with provisions on a range of subjects including a Small Business Commissioner, non-domestic rates, late payment of insurances claims, regulatory reform and other matters. Some of these provisions relate only to England, some of them mainly affect England but have knock-on effects for devolved functions in various parts of the UK, some of the bill’s provisions are UK-wide or GB-wide and relate to reserved/non-devolved matters – but others are intended to apply across the UK or Great Britain while affecting devolved matters. To make matters worse, it extensively amends existing legislation, so working out exactly what it does is no easy task.

One clause that is particularly striking is clause 35, which deals with ‘public sector exit payments’ – redundancy and similar payments made to people leaving public sector employment. It covers not only redundancy and ex gratia payments but also contractual obligations such as pay in lieu of notice or for outstanding leave entitlements, and limits the sum total of such payments to £95,000. The bill delivers a Conservative manifesto promise to ‘end taxpayer-funded six-figure payoffs for the best paid public sector workers’. These have been particularly notable in recent times with the shake-out of the public sector arising from austerity and also major reorganisations of services, which have often led to individuals taking a pay-off from one job and then moving straight into another. Another side of the coin, for very senior posts, is how to remove a senior figure like a chief executive who cannot work with a changed political leadership, a common problem in local government. An amicable redundancy settlement has usually been the way to resolve that. (As an aside, putting the figure of £95,000 onto the face of the bill is unusual and likely to cause serious practical difficulties in future, as inflation erodes the value of that amount.)

Copyright etc

All material on this blog - save that clearly marked as a quotation - is original and subject to copyright. It may not be used without my prior consent under any circumstances, save where permitted by the law of England and Wales. That permission may be subject to conditions, which will include crediting my authorship (or that of a guest poster, when a guest post is involved) and acknowledgement that the post first appeared on this blog. In the case of guest blogs, the named author must be credited.

Nothing on this blog constitutes legal advice. It is general comment. Any reader who requires legal advice should consult a solicitor, barrister, advocate or other legal adviser able to give them advice about their particular situation.

This blog is a voluntary effort. Work on it is unsupported by the ESRC or any other body.